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EXHIBIT 4(D)
DATED 31 OCTOBER 1997
XEROX LIMITED
- AND -
XEROX CAPITAL (EUROPE) PLC
- AND -
XEROX OVERSEAS HOLDINGS PLC
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DEED OF NOVATION AND RESTATEMENT
RELATING TO A
SUBSCRIPTION AGREEMENT DATED 1 DECEMBER 1995
AS AMENDED AND RESTATED ON 18 APRIL 1997
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DEED OF NOVATION AND RESTATEMENT
THIS DEED OF NOVATION AND RESTATEMENT is made on 31 October 1997 BETWEEN:
(1) Xerox Limited ("XL");
(2) Xerox Capital (Europe) plc ("XC(E)"); and
(3) Xerox Overseas Holdings PLC ("XOH").
WHEREAS:
(A) Under the terms of a subscription agreement (the "Subscription Agreement"
dated 1 December 1995 as amended and restated on 18 April 1997 between XL
and XC(E), XL has agreed to subscribe for shares in XC(E) in certain
circumstances.
(B) In connection with the transfer of XL's shares in XC(E) to XOH, XL desires
to be released and discharged from the Subscription Agreement and XC(E) has
agreed to release and discharge XL on and with effect from the date hereof
upon the terms of XOH undertaking to perform the obligations in the
Subscription Agreement and to be bound by the terms of the Subscription
Agreement in place of XL on and with effect from the date hereof.
IT IS AGREED:
1. NOVATION OF THE SUBSCRIPTION AGREEMENT
1.1 On and with effect from the date hereof, XL and XC(E) hereby irrevocably
and unconditionally mutually release and discharge each other from any and
all obligations and liabilities under the Subscription Agreement and XC(E)
accepts the liabilities and obligations of XOH upon the Subscription
Agreement in place of the liabilities and obligations of XL and agrees to
be bound by the terms of the Subscription Agreement as if XOH were named in
the Subscription Agreement as a party in place of XL.
1.2 XOH agrees to be bound by the terms and to perform the obligations of the
Subscription Agreement in every way as if it were an original party to the
Subscription Agreement in place of XL.
2. RESTATEMENT OF THE SUBSCRIPTION AGREEMENT
The parties hereto agree that the Subscription Agreement shall be restated
in the form attached as the Schedule hereto on and with effect from the
date hereof.
3. NO OTHER TERMS
There are no other terms agreed between the parties relating to the
Subscription Agreement other than as contained in this Deed and in the
Subscription Agreement.
4. GOVERNING LAW AND JURISDICTION
This Deed shall be governed by, construed and take effect in accordance
with English law.
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IN WITNESS whereof this deed has been duly executed and delivered the day and
year first before written.
EXECUTED as a deed by
XEROX LIMITED
acting by
Xxxxx X. Xxxxxx
Director
Xxxxxx Xxxxxxxx
Secretary
EXECUTED as a deed by
XEROX CAPITAL (EUROPE) plc
acting by
Xxxxx X. Xxx
Director
Xxxxxx Xxxxxxxx
Secretary
EXECUTED as a deed by
XEROX OVERSEAS HOLDINGS PLC
acting by
Xxxxx X. Xxx
Director
Xxxxxx Xxxxxxxx
Secretary
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SCHEDULE I
Novated and Restated Subscription Agreement
The Subscription Agreement (the "Agreement"), originally made on 1 December 1995
between Xerox Limited and Xerox Capital (Europe) plc ("Xerox Capital"), has been
novated and restated on 31 October 1997 between Xerox Overseas Holdings PLC
("XOH") xx Xxxxxxx, Xxxxxx Xxxxxxxxxxxxxxx XX0 0XX and its wholly-owned UK
subsidiary, Xerox Xxxxxxx xx Xxxxxxx, Xxxxxx, Xxxxxxxxxxxxxxx XX0 0XX.
The purpose of this Agreement is to set out the terms and conditions under which
XOH wishes to obligate itself to subscribe on demand by Xerox Capital for
additional ordinary shares in the share capital of Xerox Capital (the "Shares")
in return for the Xerox Capital undertakings contained herein; and
Xerox Capital wishes to obligate itself to issue the Shares upon receipt of the
consideration therefor herein provided.
NOW, THEREFORE, in consideration of the mutual covenants set forth below and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Xerox Capital shall be permitted, at any time or times when the aggregate
par value of the ordinary share capital, together with any related share
premium, of Xerox Capital held by XOH (the "XOH Shareholding") shall be
less than an amount (the "Required Amount") equal to 25 per cent of Xerox
Capital's outstanding indebtedness (disregarding contingent liabilities)
(the difference between the Required Amount and the XOH Shareholding being
expressed in Sterling and referred to herein as the "Subscription Amount"),
to serve written demand on XOH requiring it to subscribe for additional
Shares in the value of the Subscription Amount, provided that upon the
first exercise by Xerox Capital of its right to serve written demand on XOH
hereunder the Subscription Amount shall equal the Required Amount (and
shall not be reduced by the amount of the XOH Shareholding). Each demand
shall state the Subscription Amount, giving reasonable details of how the
same is calculated, and shall be signed by two directors of Xerox Capital.
Upon the date specified in the demand (which shall be not less than two
business days thereafter) XOH shall pay the Subscription Amount in cash
(the "Subscription Date").
2. Upon payment of the Subscription Amount, Xerox Capital hereby agrees to
issue at par such number of Shares as shall be equivalent to the
Subscription Amount.
3. Xerox Capital hereby agrees to continue to act as the financing vehicle for
XOH and its subsidiaries.
4. This Agreement shall not be terminated or amended or modified in a manner
materially prejudicial to Xerox Capital at any time when Xerox Capital has
outstanding any indebtedness for borrowed money to parties other than Xerox
Corporation or entities controlled by Xerox Corporation ("Debt").
5. The parties further agree that the holders from time to time of Debt are
intended to be beneficiaries ("Third Party Beneficiaries") of this
Agreement. Such Third Party Beneficiaries will have the right, under the
terms and conditions of the Debt, to require Xerox Capital to serve on XOH
a demand requiring it to subscribe for the Share and pay the Subscription
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Amount, at such time as there is a default in the performance by Xerox
Capital of its obligations to pay the principal of, premium, if any, or
interest on the Debt.
6. For the purpose of determining the Subscription Amount, any outstanding
indebtedness of Xerox Capital which is not denominated in Sterling shall be
converted into Sterling at the spot exchange rate for the purchase of that
other currency with Sterling prevailing at 11:00am on the second London
business day prior to the Subscription Date.
7. This Agreement shall be binding upon, and inure to the mutual benefit of,
XOH and its successors and Xerox Capital and its successors.
8. This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the date above written.
Signed Signed
for and on behalf of for and on behalf of
Xerox Overseas Holdings PLC Xerox Capital (Europe) plc
